PART 3 - Practical Steps Employers Can Take to Prevent Sexual Harassment

From Part 2, we know that employers may have a defence to all harassment claims brought against them in the Tribunal, if they can show they took all reasonable steps to prevent the harassment from occurring, but it happened anyway. We also know that as of 26 October 2024, there is a new positive, proactive duty on employers requiring them to take reasonable steps to prevent sexual harassment in the workplace. The new duty sets a lower standard than that required to be shown for the statutory defence (i.e. of taking all reasonable steps) however failure to comply still has financial consequences and leaves employer open to enforcement action (as set out in Part 2 of our series).

What can employers do to comply with the new duty?

Before we dive into our practical tips, we should highlight that we would recommend all employers to approach the new duty with the intention to take all reasonable steps to prevent sexual harassment before it might occur. This is not only good practice but will put employers in the best possible position, if necessary, to defend any sexual harassment claim in the Employment Tribunal.

Beyond the reputational damage associated with sexual harassment claims, the financial consequences can be significant. Sexual harassment is discrimination under the Equality Act 2010. Compensation for successful claims can involve significant injury to feelings awards and uncapped financial compensation. Furthermore, under the new legal changes, employment tribunals can uplift these awards by up to 25%. Given the high-profile nature of recent sexual harassment cases, employers are unlikely to receive any leniency if they fail to meet the obligation even though the duty is new.

As a starting point, employers should begin by reviewing their existing policies and practices. Having policies covering equality and diversity as well as bullying and harassment is essential. However, this is not enough to show that an employer took “all reasonable steps” and has met its proactive, preventative duty to take reasonable steps. An employer must take practical and effective steps to implement the policies, and training must be focused and targeted.

The Equality and Human Rights Commission (EHRC) has published guidance for employers to prevent sexual harassment in the workplace and help employers meet their preventative reasonable steps duty which includes:

• Developing an effective anti-harassment policy and consulting with staff on these
• Engaging with staff to understand where the issues are in the workplace and the effectiveness of steps taken to prevent sexual harassment
• Conducting risk assessments and identify steps to minimise the risk of sexual harassment occurring
• Explore implementing a centralised reporting system to record and assess concerns and data
• Training all staff including managers and workers on sexual harassment generally and how to address any issues. Training should be regularly reviewed and refreshed.
• How to effectively address any sexual harassment complaints
• How to prevent third party harassment from occurring and deal with any third party harassment
• Monitoring and evaluating steps put into place to consider their effectiveness at preventing sexual harassment

The EHRC guidance serves as a useful foundation for identifying actions employers could take. It will not doubt be guidance that Tribunals will consider in assessing what steps an employer has taken if sexual harassment is alleged.

The specifics of what actions each employer should take will vary based on the employer’s size and resources and the nature of the working environment. Employers must properly turn their minds to what they consider reasonable steps for their business. Employers should weigh up the likely effect of taking a particular step and whether an alternative step could be more effective. It is therefore advisable that employers review the EHRC guidance and engage legal professionals to help them put the necessary and tailored measures in place to manage risk and assist in defending any claims.

How can Thackray Williams help?

Our expert employment team is offering bespoke comprehensive training to employers for their employees and their managers on these important new legal changes including assisting employers to understand what this new duty looks like in practice and give businesses the tools to demonstrate it has taken the reasonable steps that are the centre of this change.

This training will be tailored and specific to each business and provide key information and documentation that would give businesses the strongest possibility of successfully defending a claim of sexual harassment – should one arise.

We can also assist in drafting policies aligned with the industry.

Training can be delivered in-person or remotely, depending on your preference that would best serve your business and number of staff.

We are pleased to offer a 10% discount to our existing clients.

If you would like to discuss how these new changes impact your business or if you have any questions as a member of staff, please do get in touch with our Employment Team on 020 8290 0440 or employment@thackraywilliams.com.